The Supreme Court’s recent Town of Greece v. Galloway ruling upholding invocation of a prayer before the start of a local town board meeting is not a decision that one would think would be of significance to election law, but it is. Specifically, the Court’s discussion about coercion and religious beliefs has potential importance to those arguing against campaign finance laws, especially rules mandating disclosure of political contributions.
At issue in Galloway was a practice of town board to begin its monthly board meetings with a prayer delivered by a local clergy member. Clergy were selected by local congregations listed in a local directory. It so happened, according to the Court, that most of the local congregations were Christian and therefore most of the prayers were Christian. Citizens attending the board meeting objected, claiming such prayers constituted an endorsement of Christianity, in violation of the First Amendment Establishment clause. The Supreme Court disagreed. In ruling against them the Court offered several reasons, including the fact that starting legislative deliberations with a prayer is a long-standing practice that goes back to the first Congress. But more importantly, the Court keyed in on the notion of coercion.
One of the arguments made by those objecting to the prayer was that it “coerces participation by nonadherents”–in effect, it forces those who do not wish to participate in the prayer to go along with it in order to please board members from whom they are asking a favorable ruling on a particular matter. Justice Kennedy, writing for the majority, acknowledged that the First Amendment bars the government from forcing individuals to participate in any religious exercise. But nonetheless, Kennedy disagreed. Noting that the issue of coercion is fact-intensive, Kennedy stated first that the prayer was not directed at the public but it was for the board members to help guide them in their duties. Moreover Kennedy said there was no evidence that the town board had singled out any member of the public because it refused to participate in the prayer. Requests to stand for prayer came not from the board members (the government) but from local clergy.
But more significantly while some objected that prayers made them feel unwanted, Kennedy distinguished that feeling from coercion.
[R]espondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.
Exposing individuals to ideas that they would rather not hear is not coercion, especially when those ideas a brought up are not by the government but private citizens, in this case, members of the local clergy. For the Court, it is not coercion to be exposed to ideas one objects to unless in some way the government (my emphasis) does something more, such as retaliates. Justice Thomas and Scalia in their concurrence reinforce this notion, stating that coercion only occurs when religious orthodoxy is enforced “by force of law and threat of penalty.”
So how and why is all of this significant to campaign finance laws? Central to a host of recent decisions, such as McCutcheon v. F.E.C, Davis v. Federal Election Commission, Citizens United v. F.E.C, and Federal Election Commission v. Wisconsin Right to Life, Inc is the concept that particular laws “chill political” speech. The existence of some type of campaign finance laws, especially in the case of Davis, where candidate contribution limits would be raised to offset spending by wealthy donors, were seen to chill or discourage individuals from spending or contributing money because of fear that others would be able to contribute more to offset their spending. In McCutcheon, aggregate contribution limits were seen as chilling free speech, in Citizens United bans on corporate independent expenditures were deemed censorship. In all these case laws were viewed as coercive, either directly or indirectly discouraging individuals from donating.
Now one can have a serious debate regarding whether all of these regulations really chilled or intimidated individuals from giving money. In many of these cases the issue was not really not be able to give, but how much or how, but to read these cases one would think that the challenges came from a bunch of political wallflowers, fearful of what others may think about them.
The best example of this comes in Doe v Reed where challenges came to an Oregon law arguing that the disclosure of the names of individuals who signed ballot petitions chilled their speech. The Court rejected the claims, noting no record of real intimidation or retaliation. The Court–with Chief Justice Roberts writing–rejected assertions that the mere posting on the Internet of the names of the petitioners along with maps indicating their locations is not enough of a showing of intimidation and harassment to void on First Amendment grounds their disclosure. Scalia, pushes the issue even further, declaring that we should have the courage of our convictions.
Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
The First Amendment protect us from the government, but not the dirty looks and approbation of others. The government cannot persecute individuals who hold minority or dissenting positions, but nothing in the First Amendment protects dissidents from what John Stuart Mill described in book IV of On Liberty calls the “unfavorable judgment of others.” Taking unpopular positions comes with criticism and no one should expect that the people relinquish their right to criticize.
Thus what Greece v. Galloway states when it comes to religion is that the First Amendment does not protect individuals from being shunned or criticized by the public. Feeling offended is different from being coerced. And it when it comes to campaign finance laws, especially disclosure, Galloway declares that short of real proven harassment and intimidation, being shunned, criticized, given dirty looks, or being subject to public judgment is not chilling but part of what should be expected when one takes political positions. The standard regarding what constitutes coercion in Galloway has precedential implications for disclosure laws, suggesting that more than mere offense or unpopularity of a viewpoint is necessary to implicate First Amendment concerns.